Introduction :

The right to property is a fundamental human right. It is enshrined in the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights. It is also protected by the Constitution of India. We have been given certain rights and with it comes duty. In order to protect people fundamental rights are given to them in Constitution, but it is interesting to see that in one instance in order to do economic justice, a person’s fundamental right was converted into just a constitutional right, that is Right to Property.

Right to Property under The Constitution of India

Until 1950, the right to property was one of the fundamental rights. It was repealed as a fundamental right and reinstated as a constitutional right in 1978. The right to property is the second most contentious right, and it has been altered or edited the most of any other right. The sole right removed from the list of essential rights by the 44th Constitutional Amendment Act is the right to property. Article 300A of the Constitution makes the right to property a constitutional right. The Court concluded in the case of State of Haryana v Mukesh Kumar that it is not only a constitutional right but also a human right (2011).

After the repeal of Article 31A, the State is no longer obligated to provide compensation to anyone whose land has been taken over by an entity backed by a statute passed by Parliament.

The right to property, although no longer a fundamental right, remains a significant constitutional right. There have been several judgments of the Supreme Court where it has upheld the sanctity of the Right to Property and has safeguarded the people’s right to their private property as per Article 300A of the Constitution.

Recovery of possession of Immovable property

Section 5 and 6 of the Specific Relief Act, 1963 provide methods for recovery of possession of the certain specific immovable property. Section 5 of Specific Relief Act, 1963 provides that a person entitled to the possession of any specific immovable property can recover it in the manner prescribed by the Code of Civil Procedure, 1908 (5 of 1908).

Section 5 provides the manner for recovery of specific immovable property. It reads as, “A person entitled to the possession of the specific immovable property can recover it in the manner provided by the Code of Civil Procedure, 1908”.

The essence of this section is ‘title,’ i.e. the person who has better title is a person entitled to the possession. The title may be of ownership or possession.

It is a legal notion that a person who has had long continuous possession of immovable property may defend it by getting an injunction against anyone in the world other than the genuine owner. It is also a well-established legal principle that the owner of property can regain possession only via due process of law. It stipulates that a suit for possession must be brought in accordance with the provisions of the Civil Procedure Code.

Section 6 of the Specific Relief Act deals with the provision related to suit by person dispossessed of immovable property. It reads as,

“(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him, may by suit recover possession thereof.

(2) No suit under this section shall be brought-

• After the expiry of six months from the date of dispossession.

• Against the Government.

(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of the decree under this section is allowed.

(4) Nothing in this section shall bar any person from suit to establish his title to such property and to recover possession thereof.”

Section 6 is only applicable if the plaintiff proves:

• That he is in juridical possession of the immovable property in dispute.

• That he had been dispossessed of without his consent and without due process of law.

• That dispossession took place within six months from the date of suit.

Sections 5 and 6 provide mutually exclusive alternative remedies. Section 5 allows a dispossessed person to regain possession based on title, whereas Section 6 allows a dispossessed person to regain possession by justifying past possession and future unlawful dispossession.

A person who is entitled to possession of the specific immovable property may initiate a suit for recovery of possession under Section 5 of the Specific Relief Act in the manner prescribed by the Code of Civil Procedure, 1908. Given the foregoing, a question to consider is whether a person with no title can sustain a claim for recovery of ownership and ejectment of a trespasser, as well as obtain an injunction against the trespasser. Before addressing this issue, it will be significant to first understand the concept of “possessory title” in India.

Concept of Possessory Title :

 The concept of Possessory title was recently explained by the Hon’ble Supreme Court in a case titled Poona Ram v. Moti Ram & others (Civil Appeal No. 4527 of 2009), wherein while explaining the law on possession and ownership of immovable property the Court defined the term possessory title over a particular property as such where the person is under settled or established possession of the property. In India, the law provides for the difference between a possessory title and a proprietary title. Article 65 to Schedule I of the Limitation Act, 1963 prescribes a timeline of 12 years, within which an aggrieved person may file a suit for recovery of possession of immovable property or any interest therein based on proprietary title (i.e. title bases on documents).

After an uninterrupted 12 years of possession, the person is said to be perfected his title over the property by way of adverse possession provided he proves that his possession is peaceful, open and continuous. The limitation Act further says that in case no suit is filed within the timeline of 12 years as provided under Article 65, the person extinguishes his right to file a suit for recovery of possession.

Relevent Case Laws :

In the case of Poona Ram v Moti Ram & Ors, the bench of Hon’ble Justices Mohan M Shantanagoudar and N.V Ramana of Hon’ble Supreme Court has opined that “a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such right against the true owner”. That, the proposition with regards, immoveable property remains that “Possession is nine-tenth of the law”. However, it is necessary to observe that there must be an establishment of “settled possession” to establish possessory title claim over an immovable property under Indian Law. Thus, to state that any person having casual possession over the immoveable property will not have possessory title over the said property.”

The landmark case of Vidya Devi v State of Himachal Pradesh & Ors (2020) decided the matter that a person cannot be deprived of his property without  due process  as set forth in 300A of  Constitution. The court held that the state could take possession of a person’s property only  by punishment of the law, this was done in the public interest and reasonable compensation was paid to the aggrieved party. The Court also emphasized that it could not complete its title by invoking the doctrine of adverse appropriation. The court found that taking away a person’s private property would be contrary to that person’s fundamental rights. The state can acquire a person’s private property only according to the authority of the law, and  in doing so it cannot obtain for itself any other status beyond that provided for by the Constitution, but may do so by any other means without prejudice to redemption or expropriation. The courts, in exercising their powers under Sections 32 and  146 of the Constitution, can dispense substantial justice and  no statute of limitations has been set forth for this.

Conclusion

The right to property is an absolute right, meaning that it cannot be taken away from a person without their consent. However, it can be restricted in certain circumstances such as when there are public health reasons for doing so or when it is necessary for social purposes. The law provides specific reliefs for this purpose under which a person can be deprived of his or her property without his or her consent if due procedure of law has been followed.

Can a person be dispossessed from his property without due process of law : an insight

https://indiankanoon.org/doc/1773715/

https://www.legalserviceindia.com/legal/article-5598-law-relating-to-recovery-of-possession-of-property-under-specific-relief-act-1963.html

https://www.mondaq.com/india/landlord-tenant–leases/844532/law-respects-possession-understanding-the-concept-of-adverse-possession

https://www.legalserviceindia.com/legal/article-3774-right-to-property-and-its-evolution-in-india.html

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